The basic structure doctrine is an Indian judicial principle that the Constitution of India has certainbasic features that cannot be altered or destroyed through amendments by the parliament. … The basic structure doctrine applies only to constitutional amendments.

Doctrine of Basic Structure: History and Establishment

Doctrine of basic structure is an Indian judicial principle that the Indian Constitution has certain ‘Basic Features’ that can’t be altered or destroyed through amendments by the Parliament. This doctrine applies only to Constitutional amendments. The establishment of Doctrine of Basic Structure wasn’t an easy task. A cold war between legislative and Judiciary was held to establish this principle.

The Basic Features principle was first expounded in1964 by Justice J.R. Muholker in SAJJAN SINGH vs the STATE OF RAJASTHAN. He wrote- “It is also a matter for consideration whether making a change in a basic feature of the Constitution can be regarded merely as an amendment or would it be, in effect, rewriting a part of the Constitution and if the later, would be within the preview of Article 368.”

But the Doctrine of Basic Structure come to light when the Court passed the decision in the Golaknath Vs State of Panjab. It was held that-“Parliament had no power to amend fundamental rights”. After the decision of the Court, the Govt. came up with 24th amendment of the Constitution-“By exercising Constitutional power, Govt. might amend any provision of the Constitution.”

But the validity of the 24th amendment was challenged in Kasavanande Bharati Vs State of Kerala case. In that case, Court held that-“Parliament can change any provision including fundamental rights, but, parliament can’t amend any provision which strikes the basic structure of the Constitution.”

After that, it was held in in 39th amendment that-“Supreme Court can’t pass any decision when any dispute arises regarding the election of President, Vice-president, Prime Minister and Speaker.” But in Indira Neheru Gandhi Vs Raj Narayan [AIR 1975] case, Court decided that-“One of the basic structure, Democracy, (Rule of Law, Judicial Review and Fair Election) has been violated by that amendment, so, 39th amendment of Constitution is Unconstitutional.”

Again, The Govt. came up with the 42nd amendment-“No Constitutional amendment including fundamental rights shall be called in question in any Court.” But the Court held in Minarva Mills Vs Union of India [AIR 1980] that-“Court declared the amendment unconstitutional as it transgresses the limit of the amending power and damaging or destroying the basic structure.” And last, In Women raw Vs Union of India [AIR 1980]-“Parliament can’t amend Constitution So as to destroy its basic structure.”

Bangladesh perspective:

The Doctrine of Basic Structure of the Constitution can be found in the sub-continent, as Dr. Kamal Hossain submitted in the 8th amendment case in a decision of the Dhaka High Court. This decision was first upheld by the Pakistan Supreme Court in Fazlul Quder Chowdhury Vs Abdul Hague case.

In Anwar Hussain Vs Bangladesh case, the principal argument of the judgment is that-“The Constitution stands on certain fundamental principles which are its structural pillars which the parliament can’t amend by its amending power for; if their pillars are dismissed or damaged then the whole Constitutional structure will be down.”

The basic structure doctrine is an Indian judicial principle that the Constitution of India has certain basic features that cannot be altered or destroyed through amendments by the parliament. Key among these “basic features”, as expounded by its most prominent proponent Justice Hans Raj Khanna, are the fundamental rights granted to individuals by the constitution.The doctrine thus forms the basis of a limited power of the Supreme Court to review and strike down constitutional amendments enacted by the Parliament which conflict with or seek to alter this “basic structure” of the Constitution. The basic structure doctrine applies only to constitutional amendments. The basic features of the Constitution have not been explicitly defined by the Judiciary, and the claim of any particular feature of the Constitution to be a “basic” feature is determined by the Court in each case that comes before it. The basic structure doctrine does not apply to ordinary Acts of Parliament, which must itself be in conformity with the Constitution.

The Supreme Court’s initial position on constitutional amendments was that any part of the Constitution was amendable and that the Parliament might, by passing a Constitution Amendment Act in compliance with the requirements of article 368, amend any provision of the Constitution, including the Fundamental Rights and article 368. The “basic features” principle was first expounded in 1964, by Justice J.R. Mudholkar in his dissent, in the case of Sajjan Singh v. State of Rajasthan. He wrote,

It is also a matter for consideration whether making a change in a basic feature of the Constitution can be regarded merely as an amendment or would it be, in effect, rewriting a part of the Constitution; and if the latter, would it be within the purview of Article 368?

In 1967, the Supreme Court reversed its earlier decisions in Golaknath v. State of Punjab. It held that Fundamental Rights included in Part III of the Constitution are given a “transcendental position” and are beyond the reach of Parliament. It also declared any amendment that “takes away or abridges” a Fundamental Right conferred by Part III as unconstitutional. By 1973, the basic structure doctrine triumphed in Justice Hans Raj Khanna’s judgment in the landmark decision of Kesavananda Bharati v. State of Kerala.Previously, the Supreme Court had held that the power of Parliament to amend the Constitution was unfettered. However, in this landmark ruling, the Court adjudicated that while Parliament has “wide” powers, it did not have the power to destroy or emasculate the basic elements or fundamental features of the constitution.

Although Kesavananda was decided by a narrow margin of 7-6, the basic structure doctrine has since gained widespread acceptance and legitimacy due to subsequent cases and judgments. Primary among these was the imposition of a state of emergency by Indira Gandhi in 1975, and her subsequent attempt to suppress her prosecution through the 39th Amendment. When the Kesavananda case was decided, the underlying apprehension of the majority bench that elected representatives could not be trusted to act responsibly was perceived as unprecedented. However, the passage of the 39th Amendment by the Indian National Congress’ majority in central and state legislatures, proved that in fact such apprehension was well-grounded. In Indira Nehru Gandhi v. Raj Narain and Minerva Mills v. Union of India, Constitution Benches of the Supreme Court used the basic structure doctrine to strike down the 39th Amendment and parts of the 42nd Amendment respectively, and paved the way for restoration of Indian democracy.

The Supreme Court’s position on constitutional amendments laid out in its judgements is that Parliament can amend the Constitution but cannot destroy its “basic structure”.